Passage of this law reflected Parliament's determination that lobbyist registration and reporting were necessary to principles of democracy, the rule of law, government transparency and accountability, and confidence in the integrity of government decision-making.
The CBA, being a strong proponent of the rule of law and democracy, supports the objectives of the Lobbying Act. Our submission recommends amendments to the act intended to improve and strengthen transparency and accountability as well as to ensure fairness and consistency in the application and administration of the act. We endorse many of the lobbying commissioner's recommendations to strengthen the act. In particular, the CBA makes eight recommendations.
First, we propose to eliminate the “significant part” test. In other words, this means removing the minimum volume threshold for registering in-house lobbying. We agree with the commissioner that this provision is difficult to interpret and enforce. The current provisions allow some corporations and organizations to avoid registering their lobbying activities. Moreover, and perhaps most significantly, the current threshold lets a former designated public office holder avoid the five-year lobbying ban by working as an in-house lobbyist for a corporation for less than 20% of his or her time.
Second, we propose a complementary amendment that would harmonize disclosure rules for corporations and associations. Quite simply, under the current law, when an association is required to register, it must name every employee who lobbies. On the other hand, when a company is required to register, it must name only some of the employees who lobby. Lobbying by corporation should not be any less transparent than lobbying by non-profit groups. We propose that each corporation return include the name of every employee whose duties include lobbying.
Third, we propose that board members, directors, partners, and sole proprietors, when they lobby, be registered as in-house lobbyists, not as consultants. They certainly are not consultants. Treating them as consultants is confusing, and it places an unnecessary administrative burden on individuals, a burden that is more appropriately borne by the company or the organization than by individual board members. Treating board members as in-house lobbyists would streamline the implementation without lessening transparency and disclosure. In fact, by placing all lobbying activity for a company or organization under a single return, the change would actually enhance transparency and accountability. This is the approach taken by Alberta, British Columbia, Manitoba, and Quebec.
Fourth, we believe that monthly reports should be more transparent by, one, as recommended by the commissioner, naming the in-house lobbyists who are meeting with the designated public office holders, and two, naming all the public office holders present at these meetings with designated public office holders. This change could be made by amending the regulation or by amending the act.
Fifth, we endorse the commissioner's request for statutory power to impose administrative monetary penalties for contraventions of the act or the code, subject to a statutory review or appeal process. Currently there is no penalty for breach of the code. Administrative monetary penalties would fill this gap. At the same time, if people are now to face sanctions for breach of the code, it is only appropriate that the code be incorporated into the act or the regulations.
As for breaches of the act, these allegations are currently referred to the RCMP, which investigates. The RCMP and the crown attorney determine whether charges should be laid. In the history of the federal lobbying regime, no charges have ever been brought.
I speak from personal experience as a former public office holder. While I was in office, a former official, someone subject to the five-year ban, tried to arrange a meeting between me and his client. Consistent with our policy automatically to refer any suspected wrongdoing to the appropriate authorities, I reported the matter to the lobbying commissioner, who referred it to the RCMP. Subsequently, I met with and gave evidence to the RCMP investigators. I never heard the result of the RCMP investigation, but the commissioner's latest annual report indicates that after every single Lobbying Act investigation, the RCMP declined to lay charges. This must include the case I had referred, even though it involved a clear and blatant attempt to arrange a meeting contrary to the five-year ban.
Under the current system of RCMP investigation, serious incidents of non-compliance result in no practical consequences for the lobbyists. Allowing for administrative monetary penalties will fill this void.
To be clear, the CBA does not support removing the offence provisions from the act. We believe that administrative monetary penalties and prosecution for offences should coexist as alternative and mutually exclusive processes under the act.